RAVI S.DHAVAN, J. - (1.) M/s. The Claridges Corbett Hideaway in Ramnagar, District Nainital is a company. The second petitioner Mukund Prasad is the Director of the company known as The Claridges Corbett Hideaway. The petition mentions that the company is doing hotel business at Ramnagar, District Nainital. The occasion to file the present petition arose when this company M/s. Claridges Corbett Hideaway received a notice dated 18/01/1999 drawing its attention, which attention had been also drawn earlier that the company had illegally pumped out water from the Dhikuli Canal, and thus, was liable to pay royalty for the unauthorised use of water from this canal distributing waters from Kosi river. The company resisted in its defence before the authority , to say, that the water which it draws from the canal coming out of the Kosi river, is not unauthorised nor illegal and, secondly, any charges which have been made for using this water, including penalty, is unwarranted and the assessments are illegal. The contention of the petitioner is that before serving notice on the company it should have been made aware on what exactly is the function of the authority so as to (a) to prevent drawing water from canal, which is coming out from Kosi River and (b) levying of charge which, otherwise, was in a valid.
(2.) The defence of the petitioner is not so simple as has been made out in the present petition. It appears that the company took the law into its own hands. It is on record that the hotel, which the company constructed next to the Kosi River, had been established in 1993. In the circumstances, the petitioner was receiving repeated notices that the pipelines which it had inserted into the canal, was illegal and that it could not draw water from this canal as the law prohibited it. The attention of the company had been drawn to the Northern India Canal and Drainage Act, 1873, and the Company was told of the unauthorised use of water, which it had already made. The first notice received by the company had required it to stop drawing water through pumps from the canal which came out from the Kosi river. The company ignored and resisted these notices. The company indicated to the authorities, under the Act, that it had bought the hotel next to the Dhikuli canal and the pump house was already there, having been installed by the previous owner, one Devi Dutt Himwal. It was the contention of the company that they had not installed the pump to draw water from the Dhikuli Canal, as the pump already existed as part of the establishment and they bought the whole of it and converted it into a hotel. The company was indicating to the authorities that about 1.25 Kms. away from their establishment there was another irregular pump drawing water from the same canal and the water from that pump is being utilised by the company for its gardens. The company placed on record that it had no knowledge that there were any restrictions on behalf of the irrigation department. In its defence, before the authorities, the company contended that it had 8 acres of land. One acre houses the hotel and the rest are gardens. The company accepts that the hotel has a swimming pool for which arrangements have been made between 1993 to 1997 by drawing water from the canal, out from the Kosi River. The company also places on record that as the canal is lower than the hotel complex there can be no natural flow of the canal and in the circumstances it had to make arrangements by drawing water from the canal by pumps. The company intimated the authorities that it is removing its pump and simultaneously contends that arrangements be made to bring water of the Kosi River by canal to flow near the establishment of the company. This last request of the company, it is explained, is within the amplitude of Section 16 of the Act. The company is now applying to the authorities, desiring the use of waters of the canal coming out of the Kosi River. A sort of ex-post facto sanction.
(3.) In the mean time the company has been assessed on charges for use of water from the canal, and penalty for having used these waters from a public canal, unauthorisedly and illegally. The company questions the basis of the assessment of charges and penalty.;